The People of the State of New York v. Shawn M. Kelley

THE PEOPLE OF THE STATE OF NEW YORK,RESPONDENT,v.SHAWN M. KELLEY,DEFENDANT-APPELLANT.

Appeal from an order of the Monroe County Court (Richard A. Keenan, J.), entered August 14, 2007. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

PRESENT: MARTOCHE, J.P., CENTRA, PERADOTTO, GREEN, AND GORSKI, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant's contention that County Court erred in assessing points under the risk factor for "duration of offense conduct with victim" lacks merit. We conclude that the People established by the requisite clear and convincing evidence that there was a continuing course of sexual contact (see § 168-n [3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 10 [2006]; see also People v Wood, 60 AD3d 1350). We further conclude that the court properly assessed 15 points under the risk factor for defendant's history of drug and alcohol abuse inasmuch as the People presented clear and convincing evidence of such a history (see People v Ramos, 41 AD3d 1250, lv denied 9 NY3d 809; People v Vaughn, 26 AD3d 776, 777), and defendant presented no evidence of prolonged abstinence "in recent years" (Vaughn, 26 AD3d at 777; see Ramos, 41 AD3d 1250). Finally, defendant failed to preserve for our review his contention that he was entitled to a downward departure from his presumptive risk level (see People v Ratcliff, 53 AD3d 1110, lv denied 11 NY3d 708; People v Regan, 46 AD3d 1434, 1435) and, in any event, that contention lacks merit (see Ratcliff, 53 AD3d 1110; People v Marks, 31 AD3d 1142, 1143, lv denied 7 NY3d 715).

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.